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2. In 16 B. M., 338, it was held that, in such a case, the appeal should be dismissed;
but it would seem that, when the court has no jurisdiction, there is nothing in it to dis-
miss, and that the appeal should be stricken from the docket. See 81 Ky., 57.

3. Motion for a new trial suspends the judgment; and, if it be continued to the next
term, and be then overruled, an appeal may be then taken, and the record may be lodged
in the clerk's office of the Court of Appeals within sixty days thereafter. 8 Bush, 179.

4. The day on which the judgment was rendered must be included. Where a judg-
ment was rendered November 19th, and the record filed January 19th following: held to
be too late. 1 1 Bush, 220.

5. A proceeding against the surety of a tavern-keeper to recover $300 for a breach of
the obligation of such tavern-keeper (2 Rev. Stat. % 407), is not for a misdemeanor, and does
not come within that section of the Criminal Code which requires the record to be filed in
the clerk's office of the Court of Appeals within sixty days after judgment to entitle the
party to an appeal. 3 Met., 405.

6. Upon the repeal of a statute under which the judgment was rendered, while an ap-
peal therefrom was pending, the judgment was reversed, with directions to dismiss the
warrant, the appellant to pay the cost of the appeal. 78 Ky., 287.

7. See 8 336 and notes.

§ 349 [344]- Does not suspend execution unless bond executed. The
appeal shall not suspend the execution of the judgment, unless the de-
fendant cause to be executed before the clerk of the circuit court a cov-
enant, by good surety, to be approved by said clerk, for the payment,
in case the judgment be affirmed, of the fine and costs, and costs of the
appeal, and all damages thereon, and for the surrender of the defendant
in execution of the judgment, if the judgment be for imprisonment, or
on his failure so to surrender himself for the payment of a sum equal to
two dollars for every day of imprisonment adjudged; and cause said



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1 16 APPEALS TO THE COURT OF APPEALS. [TITL* IX.



covenant to be copied into the transcript: upon which being lodged
with the clerk of the Court of Appeals, he shall issue a certificate that
execution of the judgment is suspended.

The appellant having failed to file the transcript within sixty days after judgment, the
Commonwealth was not entitled to a dismissal of the appeal with damages on the super-
sedeas bond. Si Ky. y 57.

§ 350 [345]. How appeal taken by the Commonwealth. When the
Commonwealth's attorney prays an appeal the clerk shall forthwith
make and certify a complete transcript of the record, and transmit the
same to the Attorney General, or deliver it to the Commonwealth's
attorney for that purpose ; and if the Attorney General, on inspecting
the same, believe it proper to take the appeal, he shall do so, by filing
the transcript in the clerk's office of the Court of Appeals in sixty
days after the judgment.

§ 35 1 [346]. No summons necessary on appeal No summons is neces-
sary on an appeal.

§ 352 [347]. Judgment of acquittal not to be reversed if penalty may be
imprisonment. A judgment on a verdict of acquittal, of an offence the
punishment of which is imprisonment, shall not be reversed.

§ 353 [348]- Judgment reversed for any error of law. The judgment
shall be reversed for any errors of law apparent on the record to the
prejudice of the appellant.

[Amended by substituting after the word "law" the following words:
"Appearing on the record when, upon consideration of the whole case,
the court is satisfied that the substantial rights of the defendant have
been prejudiced thereby." (Act of March 4, 1880.)]

See notes to § 340.

§ 354 [35°]- Attorney' s fee if defendant fail. Upon the affirmance of
a judgment, on the appeal of the defendant, an attorney's fee of twenty
dollars shall be taxed as part of the costs of the appeal, to go to the
Attorney General, and upon the reversal of a judgment, upon an appeal
t>y the Commonwealth, a fee of five dollars.

I have changed this section, in conformity to act of May I, 1880, I S. A., 140.

§ 355 [35 *]• Appeals in penal actions. If the prosecution be by a
penal action, the appeal shall be similar in all respects to appeals in civil
actions.

§ 356 [352]. Damages on affirmance if execution suspended by bond. If
the execution of the judgment for a fine be suspended, as provided in
this article, upon an affirmance of the judgment, damages at the rate of



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CHAP. II.] APPEALS TO CIRCUIT COURTS. 117

ten per cent, shall be awarded against the defendant [one-fourth of]
which shall be for the use of the Attorney General.
The bracketed words were repealed by act of May I, 1880.

ARTICLE III.

General Provisions,

. {357. Appeals in criminal cases to take precedence.
} 358. Stand for trial at first term after record has been lodged ten days.
8 359. If lodged within ten days before term, or during term, stand for trial in ten days.
} 360. To be decided at term when tried.
{ 361. Costs against defendant if he fail.

§ 357 [353]- Appeals in criminal cases to take precedence. Appeals in
criminal cases shall take precedence over all other business of the court,
and be placed first upon the docket for trial.

§ 35 8 [354]- When appeal stands for trial. They shall stand for trial
at the first term succeeding the lodging of the transcript in the clerk's
office of the Court of Appeals, provided it be so lodged ten days before
the commencement of the term.

§ 359 [355]' Same. When an appeal by the defendant in a case of
felony is lodged within ten days before the commencement of the term,
or during the term, it shall stand for trial on the tenth day after it is so
lodged.

§ 360 [356]. To be decided at term when tried. The appeal shall be
decided at the same term at which it is tried.

As to applying at a subsequent term to set aside a non-suit, see 89 Ky. y 78.

§ 361 [357]- Costs against defendant if he fail. On the affirmance of
a judgment, if the appeal be taken by the defendant, and on the reversal
of the judgment, if the appeal be taken by the 'Commonwealth, a judg-
ment for costs shall be rendered against the defendant.

1. This authorizes a judgment for costs against the appellant, upon affirmance of a
judgment of conviction, whether it be for felony or misdemeanor. 88 Ay., 174.

2. An appellant from a judgment convicting him of a felony is liable for his costs in the
Court of Appeals, though the judgment be reverse*!. Green v. Com., 14 Ky. L. R., 169.

CHAPTER II.

To Circuit Courts.

\ 362. In what cases defendant may appeal to circuit court.
. i 3°3* Commonwealth has no appeal to circuit court.
{ 364. How appeal is taken.
} 365. How execution suspended.
i 366. Case to be tried anew on appeal.



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1 18 APPEALS TO CIRCUIT COURTS. [title ix.



J 367. Attorney's fee and costs on affirmance.

i 368. If judgment for defendant money collected to te returned to him.

§ 369. Appeal must be within sixty days, and before satisfaction.

# 370. Proceedings on the appeal bond.

§ 362 [358]. In what cases defendant may appeal to circuit court. If a
judgment against a defendant on a trial before a county judge, or in a
justices' court, or in a city or police court, unless otherwise provided in
the statutes creating or regulating it, be for imprisonment or for a fine of
twenty dollars or more, he shall have the right of appeal to the circuit
court of the county in which the judgment is rendered.

A tax-payer has a right to appeal to the circuit court from a judgment of the county
court imposing a fine for failing to give a list of his taxable property. 13 Bush, 269.

§ 363 [359]- Commonwealth has no appeal to circuit court. The Com-
monwealth shall have no right of appeal from judgments of county
judges, or of justices' courts, or of city and police courts, unless other-
wise provided in the statutes creating or regulating them. •

§ 364 [360]. How appeal is taken. If a defendant desire to appeal
from the judgment of a county judge, or of a justices', city, or police
court, he shall obtain from the clerk of such court, or from the judge or
justice, a copy of the warrant, or summons, if any, and of the judgment,
and a statement of the costs, and file them in the clerk's office of the
circuit court, and cause to be executed, by good surety, to be approved
by the clerk, a covenant to pay the costs of the appeal in the event of
the affirmance of the judgment; and, if he desire to suspend the en-
forcement of the judgment, a further covenant to perform the judgment
which may be rendered against him on the appeal ; or, if the judgment
be for imprisonment, and the defendant fail to surrender himself in exe-
cution thereof, to pay to the Commonwealth a sum equal to two dollars
for feach day of imprisonment adjudged, and thereupon the clerk shall
docket the appeal with the other Commonwealth cases, and issue a cer-
tificate of the appeal ; and, if the covenant be executed for that purpose,
a certificate that the collection of the judgment is suspended, which cer-
tificates shall be served on the county judge, or justice, or on the clerk
of the city or police court, and, if an execution have been issued, on the
officer to whom it was delivered.

§ 365 [360]. Hozv execution suspended. After the service of a cer-
tificate of suspension, the judge, justice, or clerk, shall issue no other
execution, and any officer on whom it is served shall return the execu-
tion in his hands as suspended by appeal. If a certificate of appeal
only be served, the judge, justice, or clerk shall indorse on any execu-
tion he may thereafter issue that the money collected thereon shall be



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CHAP. II.] APPEALS TO CIRCUIT COURTS. . 1 1 9

paid into the circuit court in which the appeal is pending, and the officer
shall pay any money that he may collect on any execution in his hands,
or which he may thereafter receive, into such circuit court.

§ 366 [361]. Case to be tried anew. Upon the appeal the case shall
be tried anew, as if no judgment had been rendered, and the judgment
shall be considered as affirmed if judgment for any amount be rendered
against the defendant, and thereupon he shall be adjudged to pay the
costs of the appeal.

§ 367 [362]. Attorney's fee and costs on affirmance. Upon an affirm-
ance an attorney's fee of ten per cent, on the amount of the judgment
shall be taxed as part of the costs, and the costs in the justices' court
shall be taxed as part of the costs of the appeal.

§ 368 [363]. If judgment for defendant money collected to be returned to
him. If judgment be rendered for the defendant, any money paid into
the circuit court, which has been collected of the defendant, on the
original judgment, shall be forthwith returned to him.

§ 369 [364]. IV/ien appeal must be taken. No appeal shall be taken
from a judgment of a county judge, or of a city, police, or justices'
court, after it is satisfied, nor after sixty days from the rendition thereof.

§ 370 [365]. Proceedings on appeal bond. Upon a judgment being
rendered against the defendant on an appeal, and an execution issued
thereon, in one year from its rendition, being returned unsatisfied, a
summons shall be issued by the clerk, at the request of the Common-
wealth's attorney, against the surety on the appeal and suspending
covenants, requiring him to appear on the first day of the next term
of the circuit court, to show cause why judgment should not be ren-
dered against him on said covenants, which summons shall be directed,
delivered, served, and returned as an ordinary summons in a civil action,
and shall be docketed and stand for trial, and be tried as an ordinary
civil action. If the surety have any defence thereto, he shall make it
by answer, and the issues of law or of fact thereon shall be tried and
decided.



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120 SUPPRESSION OF RIOTS, ETC. [TITLE X

TITLE X.

PROCEEDINGS TO PREVENT THE COMMISSION OF OFFENCES.

Chap. i. Suppression of riots, and of resistance to lawful authority.

* ' 2. Requiring security to keep the peace, or for good behavior.

" 3 . Arrest and confinement of insane, drunken, and disorderly persons.

4i 4. Habeas corpus.

CHAPTER I.
Suppression of Riots, and of Resistance to Lawful Authority.

J 371. How officer may overcome resistance to execution of process.

\ 372.. Must report to court the persons resisting and their abettors.

i 373* Persons refusing to assist officer guilty of misdemeanor and contempt.

\ 374. If power of county insufficient Governor must send military from other counties.

i 375* Certain officers must command the dispersal of riotous and unlawful assembly.

§ 376. If persons so assembled do not disperse they must be arrested and punished.

i 377* Persons failing to assist officers, when summoned, to be treated as rioters.

§ 378. Officer failing to perform his duty is guilty of a misdemeanor.

$ 379. When and by whom military may be ordered out.

\ 380. Military to obey civil officers.

§ 381. Under what circumstances military may fire on mob.

§ 371 [367]. How officer may suppress resistance to execution of process.
When a sheriff or other public officer authorized to execute process
finds, or has reason to apprehend, that resistance will be made to the
execution of the process, he may command as many male inhabitants of
his county as he may think proper, and any military companies in his
county, armed and equipped, to assist him in overcoming the resistance,
and in arresting and confining the resisters and their aiders and abettors,
to be punished according to law.

§ 37 2 [368]. Must report to court resisters and their abettors. The offi-
cer must report to the court from which the process issued the names
of the resisters and their aiders and abettors, that they may be punished
for contempt.

§ 373 [369]- Persons failing to assist officer guilty of misdemeanor and
contempt. Every person commanded by a public officer to assist him in
the execution of process, who, without lawful cause, refuses or neglects
to obey the command, is guilty of a misdemeanor and contempt of the
court from which the process issued.

§ 374 [37°]- If Power of county insufficient Governor to send military
aid. If it appear to the Governor that the power of the county is not



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CHAP. I.J % SUPPRESSION OF RIOTS, ETC. 121

sufficient to execute process, he must, on application of the sheriff, order
such a military force from any other county or counties as may be neces-
sary.

§ 375 [37 *] Suppression of riots and unlawful assemblies. When
persons to the number of twenty or more are unlawfully or riotously
assembled in a city or town, the sheriff of the county and his deputies,
and the other peace officers and magistrates of such city or town, to-
gether with the mayor or other chief officer of t the city or town, must
go among the persons assembled, or as near them as possible, and, in the
name of the Commonwealth, command them to disperse.

§ 376 [372]. Rioters not dispersing to be arrested. If the persons
assembled do not immediately disperse, the magistrates and officers must
arrest them, or cause them to be arrested, that they may be punished
according to law, and may command to their aid all persons present or
in the county.

§ 377 [373]- Punishment of persons failing to aid officers. If the per-
sons commanded to aid the magistrates and officers neglect to do so
without just cause, they shall be treated as part of the rioters, and pun-
ished accordingly.

§ 37^ [374]- Officers punishable for neglect of duty . If a magistrate
or officer, named in § 375, having notice of an unlawful or riotous assem-
bly, neglect to proceed to the place of assembly, or as near as he can
with safety, and to exercise the authority invested in him to suppress the
same and arrest the offenders, he is guilty of a misdemeanor.

§ 379 [375]- When> and by whom, military may be ordered out. If the
unlawful assembly have the intent of committing a felony, or of offering
violence to person or property, or to resist by force the laws, the judge
of the circuit court, or the judge of the county court, or the mayor, or
chief officer of the city, or the sheriff of the county, or any two justices
of the peace, may, by an order directed to a commanding officer of the
militia, or of a military company, direct such military force under his
command as shall be specified, to appear at a specified time and place,
armed and equipped, to aid the civil authorities in suppressing violence
and enforcing the law, which order shall be forthwith obeyed by the
commanding officer and troops.

§ 380 [376J. Military to obey civil officers. When an armed force is
called out to suppress an unlawful or riotous assembly, it must obey
the orders of the civil officers named in the last section.

§ 38 1 [377 1- Under what circumstances military may fire on mob. The
commanding officer must act on the defensive, and only permit the troops
to use their edged or pointed weapons to repel violence, except in the
following cases :



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122 REQUIRING SECURITY TO KEEP THE PEACE, ETC. [TITLE X.



1. If an attack be made on the troops, or any one of them, by
which his life is endangered, they may defend themselves by dis-
charging their fire-arms; and when the attack is general, the com-
manding officer may order the troops to fire :

2. If the troops can not be placed between the rioters and the
persons or property they are intending to attack, and the illegal purpose
of the riot be persisted in by means dangerous to the lives or property
of others, the magistrates and officers mentioned in § 379, or any two
of them, may direct the commanding officer to disperse the rioters,
which he is authorized to do, by ordering the troops, first to use the
bayonet and sword, and if they prove ineffectual, but not otherwise, to
discharge their fire-arms against them :

3. The troops must not be brought on the ground until the mag-
istrate or officer has proclaimed the office which he holds, and com-
manded the assembly to disperse, and every endeavor must be used
by the magistrates and civil and military officers to induce, or force,
the rioters to disperse before an attack is made on them.



CHAPTER II.

Requiring Security to Keep tlte Peace or for Good Behavior,

f 382. In what cases person may be arrested and required to give security to keep peace,
or for good behavior.

\ 383. How arrest to be ordered.

\ 384. Trial and requiring bond by magistrate.

$ 385. Time for which security may be required.

§ 386. Magistrate to return bond to clerk of circuit court.

i 387. Trial and requiring bond in circuit court.

§ 388. Who may take security after defendant is committed.

§ 389. Defendant to be discharged if prosecutor fail to appear.

§ 390. Defendant to be discharged if no grounds of apprehension appear.

§ 391. What are breaches of the bond.

\ 392. Proceedings upon breach of bond.

1 393* Security may be by recognizance.

§ 382 [378]. Wtto may be required to give bond to keep the peace or Jot
good behavior, A person may be arrested for the purpose of requiring
of him security to keep the peace (a), or for his good behavior, in the
following cases:

1. Upon the complaint on oath, of a person threatened, to a magis-
trate, that the defendant has threatened to commit an offence against
his person or property, and upon the magistrate being satisfied, by ex-
amination on oath of the complainant or others, that there are reason-
able grounds to fear the commission of the offence threatened :



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CHAP. II.] REQUIRING SECURITY TO KEEP THE PEACE, ETC. 123



2. Upon information given on oath to a magistrate, by any person,
that the defendant is about to commit violence endangering human life,
or is about to commit an offence amounting to a felony, and the magis-
trate being satisfied, by an examination on oath of the informant or
others, that there are reasonable grounds for apprehending the commis-
sion of such violence or felony :

3. If a magistrate or court be satisfied, by the conduct or words of
a person in the presence of such magistrate or court, or from proof
given before such magistrate or court, that there are reasonable grounds
for apprehending that such person will commit an offence against the
person or property of another.

(a) In the absence of proof to the contrary, it will be presumed that a bond to keep
the peace was properly required. 9 Bush, 553.

§ 383 [379]. How arrest to be ordered. If the defendant be in the
presence of the court or magistrate, a peace officer shall be verbally
directed by the court or magistrate to take him into custody. If not in
the presence of the magistrate, he shall issue a warrant of arrest, directed
to any peace officer of the county, or city, or town, commanding him to
arrest the defendant and bring him before the magistrate. The com-
plaint, information, or proof, shall be briefly recited in the warrant.

§ 384 [380]. Trial and requiring bond by magistrate. Upon the de-
fendant being brought before the magistrate, or being taken into cus-
tody by order of a court or magistrate, the court or magistrate shall
hear the evidence which may be produced on either side ; and if satisfied
that there are reasonable grounds for apprehending that the defendant
will commit an offence against the person or property of another, or will
commit violence endangering human life, or an offence amounting to
felony, may require of him surety to keep the peace, or for his good
behavior, in a sum not exceeding five thousand dollars if human life be
endangered, or one thousand dollars in other cases ; and in default of
giving such surety, may commit the defendant to jail, for a period not
exceeding three months, unless he shall, in the meantime, give such
surety.

A defendant brought before a justice under a warrant, between 1 1 and 12 o'clock Sat-
urday night, was properly committed to jail until Sunday afternoon, without examination
and without endorsing on the mittimus the amount of bail required. 81 Ky. % 677.

§ 385 [381]. Time for which security may be required. The security
required by a circuit, county, or police court, may be for keeping the
peace, or for good behavior, for any length of time not exceeding one
year. If it be required by a magistrate, it shall be for keeping the
peace, or for good behavior, until the defendant shall appear before the



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124 REQUIRING SECURITY TO KEEP THE PEACE, ETC. [TITLE X.



circuit court of the county, on the first day of its next term, before
which court the defendant shall also be bound, with surety, to appear,
and not depart without leave of the court.

§ 386 [382]. Magistrate to return bond to clerk of circuit court. The
magistrate shall return the bond of the defendant and his surety for his
appearance and keeping the peace, to the clerk of the circuit court,
before its next term.

§ 387 [383]. Trial and requiring bond in circuit court. Upon the
defendant appearing, the court shall examine the case, and either dis-
charge the defendant or require surety to keep the peace, or for his
good behavior, for a period not exceeding one year ; and in default of
giving such surety, may commit the defendant to jail for a period to
be fixed by the court, not exceeding three months, unless he shall in
the meantime give security. If a defendant be committed to jail for
failure to give bond as above provided, the cause of commitment, and
the sum in which he is required to give security, shall be stated in the
written order of commitment, which shall be delivered to the jailer.

§ 388 [384]. Who may take security after defendant is committed. Any
magistrate or court of the county may take the security required by the
foregoing provisions, of a defendant, committed to jail, for default of
giving such security.

§ 389 [385]. Defendant to be discharged if prosecutor fail to appear. If
the proceedings be taken upon the complaint of the person threatened,
if he fail to appear before the court or magistrate, the defendant shall be
discharged.

§ 39° [386]. Defendant to be discharged if no grounds of apprehension
appear. Unless the court or magistrate be satisfied that there are
reasonable grounds for believing that the defendant will commit an
offence against the person or property of another, or commit violence



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 133 of 142)